State ex rel. Richardson v. Henderson

• Decision Date: 16 January 1894
• Citation: 35 P. 517,4 Wyo. 535
• Parties: STATE EX REL. RICHARDSON v. HENDERSON
• Court: Wyoming Supreme Court

35 P. 517

4 Wyo. 535

STATE EX REL. RICHARDSON v. HENDERSON

Supreme Court of Wyoming

January 16, 1894

This was an original proceeding in the nature of quo warranto, on the relation of Warren Richardson to oust the respondent Harry B. Henderson, from the office of state examiner, and to have relator declared entitled to said office. The facts are fully stated in the opinion.

W. R Stoll, for relator.

Section 6 of Chapter 84, Laws 1890-1891, authorized the appointment of relator. Henderson was appointed under a restrictive provision as to his time. The true rule is that one holding an office, the incumbent of which is by its tenure to be annually or periodically appointed or elected, and with no restrictive provision as to the term, may hold over until his successor is elected and qualified. Henderson may be a de facto officer, but is not a "legal incumbent" of the office. His occupancy is not such as to preclude a vacancy such as the governor is authorized to fill. An office is legally vacant unless the occupant has an unexpired right or title founded in the constitution or law. (State v Murphy, 32 Fla. 138; State v. Boucher, 3 N. D., 389.)

Robert W. Breckons and Lacey & Van Devanter, for defendant.

Stone who was nominated to the senate, and was not confirmed, never qualified, and could not resign. (Miller v. County, 25 Cal. 94.) His appointment was void. One cannot resign an office to which he is not entitled. (In re Corliss, 11 R.I. 638; Queen v. Blizard, 2 Q. B., 55; Throop on Pub. Off., 413; Mecham on Pub. Off., 410.) The governor could not appoint the relator in pursuance of Sec. 7, Art. 4, of the Const. as the statutes prescribe a method of filling the vacancy. (Sec. 6, Chap. 84.) The respondent was authorized, as holding a civil office, to exercise the duties of the office until his successor should be duly qualified. (Const., Art. 6, Sec. 16.) The office was not vacant (Mecham, 126-129; Throop, 431; People v. Edwards, 93 Cal. 153; State v. Howe, 25 O. St., 599; People v. Tilton, 37 Cal. 614; People v. Bissell, 49 id., 408; People v. Tyrell, 87 id., 475; People v. Osborne, 7 Colo., 608; State v. Harrison, 113 Ind. 234; Crassman v. State, 106 id., 203; Kimberlain v. State, 29 N. E., 773; State v. Rareshide, 32 La. Ann., 934; People v. Hardy, 8 Utah 68; Brady v. Howe, 50 Miss. 607; Smoot v. Summerville, 59 Md. 84; State v. Lusk, 18 Mo. 333; Commonwealth v. Hauly, 9 Pa. 513; Lawrence v. Hauly, 47 N. W., 753; State v. Davis, 45 N. J. L., 390; Borton v. Buck, 8 Kan. 302; Tappan v. Gray, 9 Paige, 507; State v. Bryson, 44 O. St. 457.

GROESBECK, CHIEF JUSTICE. CONAWAY and CLARK, JJ., concur.

OPINION

GROESBECK, CHIEF JUSTICE.

This proceeding is instituted in this court to determine the title to the office of State examiner, and the cause is submitted on an agreed statement of facts, the original jurisdiction of this court under the constitution in quo warranto as to state officers being invoked.

The relator and respondent have each all the legal qualifications required of an incumbent of the office. Shortly previous to the 20th day of December, 1892, Joel Ware Foster was the duly appointed, constituted, qualified and acting State examiner, and had resigned the office and ceased to exercise its duties. On that day Amos W. Barber, then the acting governor of the State, executed and delivered to Harry B. Henderson a commission to fill the vacancy in said office occasioned by the resignation of said Foster, to hold the office until the next meeting of the Legislature of the State, and under such appointment and commission said Henderson, duly and regularly qualified as such officer, and has discharged the duties of said office ever since, and has received and used the emoluments pertaining thereto. The next session of the Legislature occurring after the appointment of the defendant, convened January 10, 1893, and adjourned sine die February 18, 1893, and during the session of the Legislature the Senate thereof, while in session, on the 10th day of January, 1893, adopted the following resolution:

"Whereas, Harry B. Henderson was duly appointed and commissioned on December 20th, 1892, by Amos W. Barber, the then acting governor of the State of Wyoming, as State examiner to fill the vacancy occasioned by the resignation of Joel Ware Foster;

"Now, therefore, be it resolved by the senate, that the said appointment of the said Harry B. Henderson to the office of State examiner be and the same is hereby advised, consented to and confirmed."

On February 1, 1893, during the same session of the Legislature, John E. Osborne, the governor of the State, transmitted to the Senate, which was then in session, his nomination of John Stone for the office of State examiner, and on February 18, 1893, the Senate adjourned sine die without having taken any final action on said nomination, without confirming the same and without either giving or refusing to give its advice and consent to the appointment of said Stone to the office. On March 8, 1893, after the adjournment of the Legislature, and during the interval between the regular sessions thereof (the next ensuing regular session being in 1895) Governor Osborne executed and delivered a commission to said John Stone, attempting to appoint him to the office of State examiner "vice Harry B. Henderson, term expired," to hold the office until the next meeting of the Legislature. This commission was not attested by the secretary of State, nor was the great seal of the State affixed thereto. Stone never qualified or attempted to qualify as State examiner, and never entered upon or attempted to discharge the duties of the office, but thereafter and on March 23, 1893, he resigned said office, or attempted to resign the same.

On August 22, 1893, and during the time intervening between the regular sessions of the Legislature, Governor Osborne executed and delivered to the relator, Warren Richardson, Senior, a commission, purporting to appoint the relator to the office of State examiner "for the unexpired term of Harry B. Henderson, whose said office of State examiner became vacant on the 10th day of January, A. D. 1893." The words quoted are recited in this commission, which contains the further recital that said Richardson, the relator, was appointed from the date of the commission; that is, "from the 22nd day of August, A. D. 1893, until the next meeting of the Legislature of the State of Wyoming." This commission was not attested by the secretary of State under the great seal of the State. The Senate never gave its advice and consent to the appointment of the relator as State examiner, and no nomination of relator for said office was ever made by the governor to the Senate, and no nomination or appointment of the relator to said office was ever confirmed by the Senate. Upon receipt of the commission the relator accepted the same and has ever since been willing, and desires, to enter upon the duties of the office of State examiner, but has never qualified and has never given any bond as such officer.

The defendant, Henderson, has at all times refused and still refuses to recognize any right of the relator to the office of State examiner, and claims the right to hold said office and excludes the relator from the rights, privileges and emoluments thereof. There has been no session of the Legislature of the State since the adjournment on February 18, 1893. The term of office of Amos W. Barber, as acting governor expired on the 2nd day of January, 1893, and the term of John E. Osborne as governor commenced on said 2nd day of January, 1893, at which time he entered upon the discharge of his duties as such governor, and has ever since that date been the legally elected, qualified and acting governor of the State.

The foregoing statement is a sufficient review of the submitted facts for the determination of the questions involved. Counsel for defendant insist that as the relator has never qualified he is not entitled to the office, and has no standing in this court, and is not entitled to any relief, and that, as no reason or excuse is shown for the absence of the attestation of the secretary of State and the great seal of the State from the commission of the governor to relator, the commission is not fully executed and would not be a sufficient warrant or authority for the assumption of the office by the relator, even if he were otherwise legally entitled to the same. These questions we do not care to pass upon at this time, as it is manifest that if we should hold that these positions were well taken by the respondent, the greater questions of public interest involved in the case would be postponed. We prefer to decide the main questions involved--the right of Henderson, the respondent, to hold over beyond the next meeting of the Legislature ensuing after his appointment, and the authority of the governor to appoint his successor during the recess of the Senate.

Provision is made for the office of State examiner in section 14 of Article IV of the Constitution of this State:

"The Legislature shall provide for a State examiner, who shall be appointed by the Governor and confirmed by the Senate. His duty shall be to examine the accounts of State treasurer, supreme court clerks, district court clerks, and all county treasurers, and treasurers of such other public institutions as the law may require and (he) shall perform such other duties as the Legislature may prescribe. He shall report at least once a year, and oftener, if required, to such officers as are designated by the Legislature. His compensation shall be fixed by law."

This mandate to the Legislature was promptly obeyed by the enactment of a statute by the first State Legislature entitled "An Act providing for the office...